date

5 July 1804 Procedure & Evidence
5 July 1804

Procedure & Evidence

Evils causes

4th order

'.1 Unforthcomingness of evidence

Evils of the 3d Order Evil the cause of which is sought.

1. Unforthcomingness of evidence: viz: of the evidence necessary to rightful decision in favour of the demandant

1. Personal evidence

I. Natural causes

1. The witness (i.e. in respect of the faculty of yielding the evidence sought) not known

2. The abode, or other means of corresponding with him not known.

3. The witness does not appear when acted upon to depose.

4. - Is, or goes /-----/, out of the jurisdiction of the court.

5. has lost his recollection of the particular facts in question.

6. - dies

7. by insanity becomes disqualified from testifying.

8. On the part of the party who has need of the evidence, is unable to defray the expence naturally requisite for the procurement of it: see above title Expence - natural causes

9. Delay: in the present instance the natural length of delay, as above explained (suprà) inasmuch as the course of that length of time the testimony of the witness may, in one or other of those ways, or by virtue of one or other of those causes, cease to be forthcoming. See delay.

II. Factitious causes negative

1. Want of arrangements proper for the discovery of the source of evidence: i.e. of the individual capable of yielding the evidence sought.

2. Want of arrangements for the timely examination of a witness whose continuance in life is rendered precarious by old age or disease.

3. Want of effectual arrangements for compelling the appearance of the witness in case of latitantcy or disposition to expatriate.

4. Want of effectual arrangements for compelling him to -----

5. Delay in so far as any factitious quantity of it is produced /attended with any such effect as that in question/ by the operation of any of the factitious causes of delay. See delay.

III. Factitious causes positive - Exemplified

1. Exclusion of his testimony on the ground of untrustworthiness, without sufficient cause.

2. Exclusion /-----/ of his testimony on the ground of the vexation that would result from the extraction of it.
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  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils causes

    4th order

    '.1 Unforthcomingness of evidence

    II. Real and Written Evidence

    I. Natural causes

    1. The person in whose custody or power the source of evidence is, not known

    2. - his abode or other means of corresponding with him not known

    3. When called upon to produce the evidence in question, he neither brings it nor --ds it.

    4. He takes /conveys/ it or sends it out of the jurisdiction of the court.

    5. He destroys it, or loses it by forgetfulness

    6. He conveys it into other hands

    7. By his death it passes to other hands unknown

    8. The party is unable to defray the necessary expence of producing the original or (when admissible) taking draft or copies.

    9. Delay, the ---- ----- as -----

    II. Factitious causes negative

    1. Want of arrangements proper for the discovery of the source of evidence: i.e. of the place where /in which/, or the individual in whose custody or power it is.

    2. Want of effectual arrangements for compelling the production of it, or a transcript from it.

    3. Delay - any factitious length, as above, being the result of the operation of negative causes, as above. See Delay.

    III. Factitious causes positive, exemplified

    3. Exclusion of the evidence on the ground of untrustworthiness without sufficient cause

    4. ------ exclusion of the evidence on the ground of the vexation that would be produced (it is supposed) to this or that person by the disclosure of it.

    5. Delay - any factitious length, the result of the operation of positive causes - see delay.
  • Title: [20 March 1808 Letter V §.6]
    Description: 20 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    Non-forthcomingness of Evidence

    Causes

    Factitious causes negative and positive

    Factitious Causes Negative.

    1. Want of an all comprehensive system of arrangements for obtaining spontaneous discovery of persons possessing the faculty of yielding verbal testimony, or having in their custody and power sources of real or written evidence.

    2. Want of an all comprehensive system of investigatorial procedure extending to all suits, non-penal as well as penal: and applicable to the tracing out, from mouth to mouth and from hand to hand, of persons and things in the character of sources of evidence-testimonial, real and written evidence.

    3. Where on the part of a thing the faculty of yielding real evidence, or, on the part of a person, the faculty of yielding evidence of any description, testimonial, real or written, is in danger of perishing, as by death, expatriation, exprovinciation, absconsion &c, before the time at which, in ordinary course, the evidence in question would be collected; want of an all-comprehensive system of arrangements for collecting in time, and thus preventing the deposition of it.

    4. Want of an all-comprehensive system of arrangements for compelling forthcomingness on the part of persons, in the character of sources of evidence, for the purpose of oral examination, in cases in which that mode of collecting evidence is prudentially as well as physically practicable.

    5. Want of d o for collecting evidence by epistolary examination when oral is physically or prudentially impracticable or insufficient.
  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils

    3d order

    '.1 1. Wrongful decision to plff

    Evils of the 2d Order (= Cause of the 1st Order)

    1. Wrongful decision - viz: on the part of the judge to the prejudice of the plff.

    Immediate causes of this evil: being causes of the 2d order with reference to ultimate injustice in any of its six several branches -

    I. On the part of the judge.

    1. I. Natural causes

    Deficiency in respect of

    1. Want of intelligence - including

    1. Knowledge of appropriate matter of fact, in the character of precognition.

    2. Real lack of judgement or say discernment

    3. Promptitude of conception and judgement

    4. Faculty of repression

    2. Want of probity: 1. impartiality 2. assiduity of bodily attendance 3. Attention - labour of mind.

    3. Want of adequate power ab extrà - i.e. from the legislator, or rather from the nature of things. (a)

     For the remainder to the causes of wrongful decision so far as they are referable to the formal qualifications of the judge, see the Book on the Judicial Establishment.

    II. On the part of the evidence -

    4. Unforthcomingness of a part or of the whole of the existing mass of requisite evidence

    5. Fallaciousness of /in/ any part of the mass of evidence forthcoming and exhibited.

    II. Factitious causes negative.

    1 Non-notoriety of the law bearing upon the case. viz: of that part of the law by which if known a different decision would have been seen to be prescribed.

    2 Uncertainty of the law - (The terms of the law (viz: to the judge) but the sense to be put upon them uncertain.

    (a) Note

    These causes may be deemed natural, within the limits of the differences produced by the idiosyncratic character of the individual: in each individual instance: factitious in so far as it may be within the powers of law /the legislator/ to provide an adequate remedy to those natural causes, by arrangements relative to the ----, mode of r-----ation, and mode of procedure /operation/ on the part of the judge.